William George Carlsen t/as W & E Carlsen Builders v Tresidder
[2014] QCAT 12
•16 January 2014
| CITATION: | William George Carlsen t/as W & E Carlsen Builders v Tresidder [2014] QCAT 12 |
| PARTIES: | William George Carlsen t/as W & E Carlsen Builders (Applicant) |
| v | |
| Steven Tresidder Melissa Tresidder (Respondents) |
| APPLICATION NUMBER: | BDL130-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 16 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for miscellaneous matters filed on 24 September 2013 is dismissed. 2. The application is listed for hearing for two days commencing 22 May 2014 at 9:30am in Cairns. |
| CATCHWORDS: | Security – where applicant applied for the respondent to pay money into the trust account of the Tribunal – where multiplicity of issues in dispute – whether the applicant’s claim for the amount to be paid can be said to be incontrovertible Queensland Building and Construction Commission Act 1991 (Qld) s 82 CJ & HG Windsor Pty Ltd v Waterman [2013] QCAT 618; Foreman Builders Pty Ltd v Coetzee [2009] QCCTB 147. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The issues in this building dispute, typically, relates to monies owed to the applicant builder under a building contract with a counter-claim for incomplete or defective work by the respondent home owner.
The applicant entered into a Master Builders Residential Building Contract with the respondents in September 2009 to carry out an extension to the respondents’ home for a contract price of $163,171.70. Again, typically, there were variations to the contract some of which were not recorded in writing contrary to the requirements of the Domestic Building Contracts Act.
At the time work stopped, the applicant contends that it was owed a total of $82,002.04 constituting damages for breach of contract, restitution and damages for breach of an oral contract.
The respondents, as I said, claimed that the building work is either defective or incomplete and have produced a quote for the cost of rectification and completion from All Seasons Home Improvements in the sum of $53,849.90. The also contend the applicant did not comply with the terms of the contract with respect to the obligations imposed by cl 17 of the contract relating to ‘practical completion’. In fact, the respondents contend that the works never reached practical completion and put in issue the applicant’s entitlement to the money claimed under the contract.
There is therefore are live issues as to whether or not the contract was either completed or validly terminated by one or the other party to the proceeding, whether the applicant is entitled to any money under the contact and whether there is defective and incomplete work for which the respondents should be compensated. The determination of these maters will depend on findings of fact which can only be made at the hearing of the application[1]. Therefore, it is difficult at this stage to make any judgment as to either party’s prospects of success in the proceeding.
[1]CJ & HG Windsor Pty Ltd v Waterman [2013] QCAT 618.
These observations are made in the context of the application filed by the applicant on 24 September 2013 asking the Tribunal to make interim orders that the respondents either pay to the applicant $62,631.70 being the balance of money due under the contract or alternatively pay that sum into the Tribunal’s trust account pending the final determination of this proceeding. The applicant contends, leaving aside damages and claims for variations, this is a sum certain for the balance owed under the contract.
There is power for the Tribunal to do that under s 82(3) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). The applicant, relied on a statement in Foreman Builders Pty Ltd v Coetzee[2] that any amount claimed should be ‘effectively incontrovertible and not under challenge by the owner.’ There is nothing novel about that statement.
[2][2008] QCCTB 147.
As I have already highlighted, that is not the case here. There is a direct challenge as to the applicant’s entitlement to payment on the grounds that it did not comply with the terms of the contract with respect of practical completion. If the applicant is found to be in breach of the contract then there is a serious issue as to whether it is entitled to any money under the contract at all[3] even the balance sought to be paid into the Tribunal’s trust account.
[3]CJ & HG Windsor Pty Ltd v Waterman supra.
Having read the submissions filed by both parties I am not satisfied that this is a case where the money ought to be secured because it cannot be said to be a payment that is incontrovertible in the circumstances of this case. Therefore, the application is dismissed.
This matter has been the subject of a number of compulsory conferences. It is unclear whether there has been any positive outcome. There is an expert’s conclave to be conducted on 24 February 2014 and a further compulsory conference on 22 April 2014. I am assuming the reason the matter was listed for a further compulsory conference is because the parties must have some confidence there is some utility in the process. To ensure that the matter now proceeds to conclusion as efficiently and expeditiously as possible, it will also be listed for hearing in Cairns on 22 May and 23 May 2014.
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